Coble v. Shoffner
| Decision Date | 30 June 1876 |
| Citation | 75 N.C. 42 |
| Court | North Carolina Supreme Court |
| Parties | PAUL COBLE v. NANCY SHOFFNER, Adm'r., and another. |
In an action on a bond wherein eight per cent. is named as the rate of interest, but it was not expressed to be given for the loan of money as the consideration: It was held, that the entire interest was not forfeited, but that the plaintiff was entitled to recover interest on such obligation, at the rate of six per cent.
The penalty of forfeiture of the entire interest attaches in only two cases: First, when no rate is named in the obligation, and a greater rate than six per cent. is reserved, and second, when a greater rate than eight per cent. is named.
( Smithwick v. Williams, 8 Ired. 268; State v. Knight, 2 Hay. 109, cited and approved.)
CIVIL ACTION upon a bond, tried before KERR, J., at Spring Term, 1876, of ALAMANCE Superior Court.
The defendants relied upon the plea of usury, the bond bearing interest at 8 per cent. upon its face, and not setting forth that the consideration thereof was money loaned.
The Court rendered judgment in favor of the plaintiff for the amount of the bond, with interest from the date of the judgment until paid. From this judgment the plaintiff appealed.
Dillard & Gilmer and Gray & Stamps, for appellants .
Boyd, contra .
The action is on a bond wherein eight per cent. is named as the rate of interest, but it is not expressed to be given for the loan of money as the consideration of the bond. We are to assume, therefore, that the bond was not executed for money loaned. The question is, does the penalty prescribed in the Act of 1866, Battle's Revisal, chap. 114, apply to this case? That Act provides:
1. That the legal rate of interest upon all sums of money where interest is allowed, shall be six per cent. per annum for such time as interest may accrue.
2. That for the loan of money, but upon no other account, interest may be taken at so high a rate as eight per cent. if the consideration and rate are set forth in the obligation.
3. The penalty. It is thus prescribed in the Act: “If any person shall agree to take a greater rate of interest than six per cent., when no rate is named in the obligation, 1; or a greater rate than eight per cent. when the rate is named, the interest shall not be recoverable at law, (2).” In our case the rate of interest is named in the obligation, and, therefore, it is not embraced in the first category. The interest reserved is not greater than eight per cent. and, therefore, the case is not embraced in the second category. The statute, then, does not expressly embrace our case.
There is no question but that a statute prescribing a forfeiture of all interest is a penal statute, and is to be construed strictly. It cannot be construed by implication, or otherwise than by the express letter. It cannot be extended, by even an equitable construction, beyond the plain import of its language....
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...restricted to the plain import of the language used to convey the intent of the Legislature. Smithwick v. Williams, 30 N.C. 268; Coble v. Shoffner, 75 N.C. 42; State Midgett, 85 N.C. 538. In declaring upon a penal statute, certain rules of pleading, besides the general rules, are specially ......
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... ... "Applying ... the rule by which courts should be guided in the ... construction of a penal statute, Bynum, J., in Coble v ... Shoffner, 75 N.C. 42, says: 'It cannot be ... construed by implication, or otherwise than by express ... letter. It cannot be extended by ... ...
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Hamlet Grocery Co v. Southern Ry. Co
...consideration, said: "Applying the rule by which courts should be guided in the construction of a penal statute; Bynum, J., in Coble v. Shoffner, 75 N. C. 42, says: 'It cannot be construed by implication, or otherwise than by express letter. It cannot be extended by even an equitable constr......
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... ... Section 1266 is a penal statute. (Black ... on Interpretation of Laws, p. 293; Sutherland on Statutory ... Construction, sec. 356; Coble v. Shaffner, 75 N.C ... 42; Farmers' etc. Bank v. Dearing, 91 U.S. 29.) ... The provisions of said section do not apply to the state; for ... it ... ...